Citation Nr: 0524798
Decision Date: 09/13/05 Archive Date: 09/21/05
DOCKET NO. 04-11 888A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Wilmington, Delaware
THE ISSUES
1. Entitlement to service connection for a skin disorder,
including as secondary to herbicide exposure.
2. Entitlement to service connection for erectile
dysfunction (E.D.), claimed as secondary to diabetes
mellitus.
3. Entitlement to an increased rating for post-traumatic
stress disorder (PTSD), currently evaluated as 30 percent
disabling.
REPRESENTATION
Veteran represented by: Thomas J. Reed, Attorney
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
C. L. Wasser, Counsel
INTRODUCTION
The veteran served on active duty from January 1964 to
January 1966, including service in Vietnam.
This case comes to the Board of Veterans' Appeals (Board)
partly on appeal from a November 2001 decision by the RO in
Wilmington, Delaware that, in pertinent part, denied service
connection for a skin disorder, as secondary to herbicide
exposure, and denied service connection for E.D. This case
also comes to the Board on appeal from an April 2003 rating
decision which denied an increase in a 30 percent rating for
PTSD. A videoconference hearing was held before the
undersigned Acting Veterans Law Judge in November 2004.
The issues of entitlement to service connection for a skin
disorder and E.D. are addressed in the REMAND portion of the
decision below and are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
The veteran's PTSD does not result in more than occupational
and social impairment with occasional decrease in work
efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal).
CONCLUSION OF LAW
The criteria for a rating higher than 30 percent for PTSD
have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§ 4.130, Diagnostic Code 9411 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
Prior to the veteran's appeal, the Veterans Claims Assistance
Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096
(2000), was signed into law. It is codified at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In
addition, regulations implementing the VCAA have been
codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326
(2004).
The VCAA essentially eliminates the requirement that a
claimant submit evidence of a well-grounded claim, and
provides that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also requires VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant.
The record reflects that VA has made adequate efforts to
notify the veteran of the information and evidence needed to
substantiate his claim. The veteran was provided with a copy
of the rating decision noted above, and a February 2004
statement of the case. He was furnished with a VCAA letter
in August 2001, as well as multiple other letters requesting
evidence. These documents, collectively, provide notice of
the law and governing regulations, as well as the reasons for
the determinations made regarding his claim. By way of these
documents, the veteran was also specifically informed of the
cumulative evidence already having been previously provided
to VA or obtained by VA on his behalf. He was also informed
of what evidence the VA would obtain.
The Board notes that the veteran has undergone multiple VA
examinations, and VA and private medical records have been
obtained.
The Board finds that the veteran was provided notice of the
division of responsibility in obtaining evidence pertinent to
his case and ample opportunity to submit and/or identify such
evidence. It appears that no additional evidence is
forthcoming. Therefore, under the circumstances, the Board
finds that VA has satisfied both its duty to notify and
assist the veteran in this case and adjudication of this
appeal at this juncture poses no risk of prejudice to the
veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394
(1993).
Factual Background
In a December 1996 rating decision, the RO established
service connection for PTSD, and rated such 30 percent
disabling.
In August 2001, the veteran submitted a claim for an
increased rating for PTSD.
At a December 2001 VA psychiatric examination, the veteran
reported that he had dreams of combat experiences. He said
that the frequency of such dreams had increased since
September 11, 2001, and the ongoing military action. He had
intense guilt about the fact that he participated in combat,
which was contrary to his religious beliefs. He said he
drank more excessively when he felt troubled in that way. He
reported that he had never married, but had been living with
the same woman for the past 30 years, and had one daughter.
He had been employed for approximately the past 30 years at a
waste treatment plant, and was working full-time. He denied
current psychiatric treatment.
On examination, he was tiredly cooperative, alert, and
oriented. He was friendly and appropriate. He mentioned
that whenever there was any news coverage of wartime
activities he tended to get emotional, sometimes sad and
tearful, and he complained of insomnia. He said he could not
sleep, felt fatigued from not sleeping well, and felt he was
not functioning well the next day. He had cravings to resume
drinking alcohol, and had in fact relapsed toward some degree
of drinking, even though he knew that he should not do so due
to other health conditions. The diagnosis was PTSD of mild
to moderate degree with startle reactions, dreams of combat
and depressive moods, where work adjustment had been pretty
good over a long period of time, and he maintained a long-
term relationship. The global assessment of functioning
(GAF) score was 61.
Subsequent VA medical records reflect ongoing treatment for
PTSD, generally described as "stable." A March 2002
outpatient treatment record reflects that the veteran's major
problem was sleep disturbance with nightmares. He felt that
this problem was related to his swing shift variation. He
had no previous psychiatric care and was on no psychiatric
medication. He rarely drank alcohol, and had worked as a
plant operator at a water treatment plant where he had worked
for almost 30 years. He was distressed that security had not
been tightened since September 11, 2001. He had never
married but lived with the same woman for almost 30 years.
On examination, he was alert and correctly oriented. His
mood was euthymic, speech was clear, and there was good eye
contact. He was relevant and coherent, concentration and
memory were intact. Insight was adequate, and judgment was
fair. There was no evidence of a thought disorder. The
diagnostic impression was 30 percent service-connected for
PTSD. An April 2002 outpatient treatment note reflects that
the veteran was neat, clean, logical, coherent, and pleasant,
with clear thinking. His affect was full and appropriate,
concentration was good, there was good insight, mood was
euthymic, and there was no suicidal or homicidal ideation.
Medication was prescribed.
An October 2002 VA outpatient treatment record reflects that
the veteran's companion died in September 2002, which was a
shock to everyone. The veteran reported that he was handling
this event as best he could. He had gone back to work as an
environmental engineer. On examination, he was neat, clean,
pleasant, cooperative, logical, and coherent. His thinking
was clear with no hallucinations or delusions, his affect was
full and appropriate to thought content, his mood was mildly
depressed with no suicidal plans, his memory and
concentration were intact, his concentration was good, and he
had good insight.
At a March 2003 VA psychiatric examination, the veteran
reported that he continued to work as a waste plant operator,
and continued to attend the VA mental health clinic. The
veteran reported that since his companion's death, he had
increased difficulty with insomnia at night, and increased
moods of depression. The current news coverage of the war in
Iraq disturbed him. He reacted with a great deal of tension
and anxiety to the news coverage and felt that "it all takes
you back there", referring to his own experiences in Vietnam
and prior news of terrorist attacks. He also reported that
his employer was downsizing, and that new employees had not
been hired to replace the lost employees, which he felt
resulted in unsafe working conditions. He said he was
constantly vigilant about hazardous possibilities at work,
and that this added to his level of tension. The examiner
noted that the veteran's VA psychiatrist had recently
increased the medications for the veteran's depression
related to his PTSD. The Axis I diagnosis was PTSD. The
examiner noted that psychosocial and environmental problems
(Axis IV) included the circumstances of working in a
hazardous facility, and the recent loss of his companion by
traumatic sudden cancer in September 2002. The GAF score was
45, due to seriousness of symptoms.
An outpatient note from the VA mental health clinic dated the
next day, in March 2003, reflects that the veteran was in
good spirits, and was neat, clean, logical, coherent, and
pleasant, with clear thinking. His affect was full and
appropriate, concentration and insight were good, his mood
was euthymic, and there was no suicidal or homicidal
ideation. The veteran's psychiatric medications were
renewed. An October 2003 outpatient treatment record
reflects that the veteran had circadian rhythm sleep disorder
with insomnia secondary to shift worker-related sleep/wake
irregularity and PTSD. In October 2003, the veteran reported
that he was working swing shifts, 12 hours per day. He said
he was feeling pretty good. On examination, he was alert,
and his attention and vigilance were unremarkable. He was
well-groomed and casually and neatly dressed. He was
pleasant and cooperative. His affect was normal in range, he
was euthymic, his speech was normal in rate, volume and flow,
his thought process was coherent, he had no suicidal or
homicidal ideation. Cognition was grossly intact, and he was
oriented times three. Insight and judgment were intact. The
diagnosis was PTSD.
In a January 2004 treatment note, a private physician, T. C.
M., MD, indicated that the veteran complained of snoring and
apneic spells, and reported that his job involved shift work.
He complained of sleep difficulties resulting from his shift
work. He also complained of occasional nightmares related to
Vietnam which were also associated with insomnia. He noted
that the veteran had a diagnosis of depression and PTSD, and
had been taking Celexa for about a year. The veteran had not
noticed any impressive decrease in depression (which was
mild). Pertinent diagnoses were obstructive sleep apnea
syndrome, shift worker sleep disorder, and depression/PTSD.
In a January 2004 note, Dr. M indicated that the veteran
could not work the 6:00 p.m. to 6:00 a.m. shift, but could
work the 6:00 a.m. to 6:00 p.m. shift. A May 2004 private
treatment note from Dr. M reflects that the veteran was
diagnosed in part with obstructive sleep apnea syndrome,
shift worker sleep disorder, and depression/PTSD. Dr. M
noted that in a recent continuous positive airway pressure
(CPAP) sleep study, all snoring and significant respiratory
events were eliminated, and the veteran slept rather well. A
prescription was given for CPAP equipment. In a May 2004
note, Dr. M indicated that the veteran was medically cleared
to work during daytime hours, but not nighttime hours, due to
a diagnosis of sleep apnea. On a questionnaire from the
veteran's employer, Dr. M stated that the veteran could not
work the night shift due to a sleep disorder, and that
working the night shift was medically deleterious to the
veteran.
At a November 2004 Board hearing, the veteran essentially
asserted that his PTSD was more disabling than currently
evaluated. He said he worked until June 2004, when he
retired at age 62. He said he was out on disability for six
months prior to his 62nd birthday. He said his disability
leave was related to hypertension, diabetes, heart
palpitations, and sleep apnea. He said his job was stressful
and the work conditions were dangerous. He said he was more
forgetful and repeated things. He sometimes woke up,
sweating, from nightmares, and his heart was beating quickly.
He said he was off work twice for six months at a time for
this condition. He did not have too many friends, but he had
a good relationship with his late companion, and with his
daughter. He said he currently took care of his house and
tried to exercise.
Analysis
The veteran contends that his PTSD is more disabling than
currently evaluated.
When rating the veteran's service-connected disability, the
entire medical history must be borne in mind. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). However, the present
level of disability is of primary concern in a claim for an
increased rating; the more recent evidence is generally the
most relevant in such a claim, as it provides the most
accurate picture of the current severity of the disability.
Francisco v. Brown, 7 Vet. App. 55 (1994).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
PTSD is rated 30 percent disabling when it results in
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, and mild memory loss (such
as forgetting names, directions, recent events). A rating of
50 percent is assigned for PTSD when it results in
occupational and social impairment with reduced reliability
and productivity due to such symptoms as flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short and long term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships. PTSD is rated 70 percent disabling when it
produces occupational and social impairment, with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships. 38 C.F.R. § 4.130,
Diagnostic Code 9411.
The psychiatric symptoms listed in the above rating criteria
are not exclusive, but are examples of typical symptoms for
the listed percentage ratings. Mauerhan v. Principi, 16 Vet.
App. 436 (2002).
In evaluating the evidence, the Board has noted the various
GAF scores which clinicians have assigned. he GAF is a scale
reflecting the psychological, social, and occupational
functioning on a hypothetical continuum of mental health-
illness. See Diagnostic and Statistical Manual of Mental
Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App.
240 (1995).
For example, a GAF score of 41 to 50 is meant to reflect an
examiner's assessment of serious symptoms (e.g. suicidal
ideation, severe obsessional rituals, frequent shoplifting)
or any serious impairment in social, occupational, or school
functioning (e.g. no friends, unable to keep a job).
A 51-60 GAF score indicates the examiner's assessment of
moderate symptoms (e.g., a flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in
social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers).
A GAF score of 61 to 70 indicates some mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in
social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally
functioning pretty well, and has some meaningful
interpersonal relationships.
An examiner's classification of the level of psychiatric
impairment at the moment of examination, by words or by a GAF
score, is to be considered, but it is not determinative of
the percentage VA disability rating to be assigned; the
percentage evaluation is to be based on all the evidence that
bears on occupational and social impairment. See 38 C.F.R. §
4.126 (2004); VAOPGCPREC 10-95.
The evidence shows regular outpatient treatment for PTSD,
with medication but without hospitalization. The VA
examination in December 2001 resulted in an impression of
mild to moderate disability resulting from PTSD. The GAF
score at that time was 61. Records on file reflect that the
veteran worked at the same job for about 30 years, until six
months before his 62nd birthday, when he retired. He lived
with the same woman for about 30 years, and prior to her
unexpected death in September 2002, they had a good
relationship. He said he had a good relationship with his
adult daughter, but that he had few friends. Outpatient VA
treatment records from the mental health clinic generally
reflect mild symptoms from PTSD. Since the death of his
companion, it appears that the veteran's symptoms from PTSD
have worsened. Medical records reflect that his sleep
impairment has multiple causes, including non-service-
connected sleep apnea, and "shift worker sleep disorder,"
as well as PTSD. At a March 2003 VA examination, the
examiner indicated that the current GAF was 45, and that the
veteran had psychosocial and environmental problems including
the circumstances of working in a hazardous facility, and the
recent loss of his companion by traumatic sudden cancer in
September 2002. A VA outpatient treatment record dated the
next day reflected mild symptoms, as did another VA
outpatient note dated in October 2003. In January 2004, a
private physician described the veteran's depression as mild.
The veteran has identified multiple reasons for his
disability leave from work prior to his retirement, including
non-service-connected disabilities as well as service-
connected PTSD.
The weight of the evidence establishes that the veteran's
PTSD results in no more than occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal). The
Board finds that the findings of the March 2003 VA
examination are not consistent with the ongoing outpatient
treatment records from the VA mental health clinic. A rating
higher than 30 percent is not warranted. In this regard, the
Board notes that the veteran worked at the same job and lived
with his companion for many years, and is only receiving
outpatient treatment with medication. It appears that his
current retirement is primarily due to non-service-connected
conditions, and to age. The symptoms required for a higher
rating have not been shown. He does not have any other
symptoms reflective of more than a 30 percent rating. In
addition, he did not have any symptoms that may be considered
analogous to the listed criteria for a 50 percent rating. 38
C.F.R. § 4.130, Code 9411; see Mauerhan, supra.
The preponderance of the evidence is against the veteran's
claim for an increased rating for PTSD. Consequently, the
benefit-of-the-doubt rule does not apply, and the claim must
be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
ORDER
An increased rating for PTSD is denied.
REMAND
With respect to the claims for service connection for a skin
disorder and E.D., although further delay is regrettable, the
Board finds that additional development is necessary prior to
appellate review. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
With respect to the claim for service connection for a skin
disorder, the veteran has reported that he received VA
treatment for a skin disorder at the Wilmington VA Medical
Center (VAMC) in 1966 and 1967. Records of such treatment
are not on file. Although the RO made an unsuccessful
attempt to obtain such records in 1980, the Board finds that
another attempt should be made. 38 U.S.C.A. § 5103A(b); See
Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records
are in constructive possession of the agency, and must be
obtained if the material could be determinative of the
claim).
The veteran is also advised that he may submit pertinent
evidence tending to show that he currently has a skin
disorder which is related to service. 38 U.S.C.A. § 5103(a).
The evidence reflects that the veteran has been diagnosed
with organic impotence. He asserts that his E.D. is related
either to in-service prostatitis or to service-connected
diabetes mellitus. The Board finds that a medical
examination is necessary to make a decision on this claim.
38 U.S.C.A. § 5103A(d). The RO should schedule the veteran
for a VA examination to determine the etiology of current
E.D.
In light of the foregoing, the case is remanded to the RO for
the following action:
1. Ask the veteran to identify all VA
and non-VA health care providers that
have treated him for a skin disorder
and/or E.D. since separation from
service. After receiving this
information and any necessary releases,
the RO should contact the named medical
providers and obtain copies of the
related medical records.
In particular, the RO should attempt to
obtain VA medical records dated in 1966
and 1967 from the Wilmington VAMC
pertaining to a skin disorder.
2. After receiving the above evidence,
the RO should determine whether a medical
examination is necessary to make a
decision on the claim for service
connection for a skin disorder, including
as secondary to herbicide exposure. See
38 U.S.C.A. § 5103A(d)(2). If the RO
determines that such an examination is
necessary, it should be scheduled.
3. The RO should schedule the veteran
for a VA examination to determine the
etiology of current E.D. The claims file
should be reviewed by the examiner, and
the examination report should reflect
that this was done. The examiner should
opine as to whether it is at least as
likely as not (50 percent) that current
E.D. is related to in-service prostatitis
or infections, and whether it is at least
as likely as not that current E.D. is
related to diabetes mellitus.
4. Following completion of the
foregoing, the RO should readjudicate the
veteran's claims for service connection
for a skin disorder, including as
secondary to herbicide exposure, and for
E.D., including as secondary to service-
connected diabetes mellitus. The RO
should consider all evidence received
since the February 2004 statement of the
case. If the claims are denied, the
veteran should be issued a supplemental
statement of the case, and given time to
respond. The case should then be
returned to the Board for appellate
review.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of
2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651
(2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
______________________________________________
K. PARAKKAL
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs